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The odyssey of Abdul Aziz Naji has taken many terrible twists and turns since he was seized in Pakistan in May 2002, tortured at Bagram, then sent to Guantanamo, where he was formally cleared of any charges in a review of prisoner status last year. He was forcibly repatriated to Algeria on July 20, despite his fears of being harmed by Islamic forces or the government upon his return. Such forcible repatriation of a prisoner or detainee who fears persecution or worse is a violation of international law. This principle of non-refoulement, or non-return is specifically forbidden in the UN Convention Against Torture and Convention Relating to the Status of Refugees.

The Obama administration was cleared to effect the deportation against the prisoner’s will by no less than the Supreme Court, who rejected a lower court order blocking the action. What hasn’t been reported thus far is the role of Congress, who was mandated to have advance notice of the transfer.

According to the 2010 Homeland Security Appropriations, Interior Appropriations, Consolidated Appropriations, and Defense Appropriations Acts, all of which contain similar language on the subject, no funds are to be appropriated for the transfer of a Guantanamo prisoner to another state unless 15 days prior to release the President submit to Congress, "in classified form," a statement regarding any risks to national security or U.S. citizens, the name of the prisoner and country of release, and "the terms of any agreement with the country or freely associated state that has agreed to accept the detainee." (See PDF link.)

Congress Informed of Plan to Flout the Law

Both the offices of Senator Carl Levin, chairman of the Senate Armed Services Committee, and Senator Dianne Feinstein, chairwoman of the Senate Select Committee on Intelligence, confirmed to me that the 15-day notification did take place, meaning that requisite Congressional committees were informed of the deportation and the fact that it was not taking place on the basis of non-refoulement, and presumably, as the Obama administration has maintained, with "diplomatic assurances" from the Algerian government the prisoners would not be mistreated. The Washington Post said the administration took this to be good coin "because 10 other detainees have been returned to Algeria without incident." But we know that in a number of these cases, the former Guantanamo prisoners were subsequently imprisoned and put on trial. Moreover, numerous human rights organizations have decried reliance on "diplomatic assurances" of safety as not being reliable.

Governments that engage in torture routinely deny it and refuse to investigate allegations of torture. A government that is already violating its international obligation not to torture cannot be trusted to abide by a further "assurance" that it will not torture.

Then, too, there is fear that the government cannot protect returnees against being preyed upon by Islamic radical forces. As the U.S. 2006 State Department report on Algeria explained:

The country’s 1992-2002 civil conflict pitted self-proclaimed radical Muslims belonging to the Armed Islamic Group (GIA) and its later offshoot, the GSPC, against moderate Muslims. During the year [2005] radical Islamic extremists issued public threats against all “infidels” in the country, both foreigners and citizens. The country’s terrorist groups generally did not differentiate between religious and political killings.

A number of remaining Algerian prisoners fear return as well. One of them, Farhi Saeed Bin Mohammed, who won his "freedom" via habeas appeal last year, was one of the prisoners whose deportation block was lifted by the Supreme Court at the same time as Naji. To date, he remains at Guantanamo. Andy Worthington describes the fate of the others, including Djamel Ameziane, a Berber who fled Algeria years ago and lived five years in Canada.

The action, or more properly, inaction of Congress in the face of the illegal return (by international standards and U.S. treaty) of Abdul Aziz Naji to Algeria is inexcusable. When asked to make further explanation on policy regarding non-refoulement in general, or in the case of Mr. Naji, both Sen. Levin and Sen. Feinstein’s office declined to comment. We can only be left with the impression that they did not intend to stand in the way of this breaking of international law, and only a widespread outcry has assured, for the moment, that further such deportations have been delayed.

While, after a week’s incarceration, and some confusion about his fate, Naji is now reported to be safe at his family’s home in Batna, about 300 miles east of Algiers, it’s not clear that his safety is assured. Naji had stated that he feared torture, or death, at the hands of either the Algerian government or the Islamic fundamentalist oppositions who have been fighting the government. Over 10,000 have died in this conflict since the early 1990s. As a July 25 New York Times editorial on the Naji deportation noted, U.S. State Department reviews have described the ongoing use of disappearances and the extraction of confessions through torture by the Algerian government.

Andy Worthington has described the case of Mustapha Hamlili, who was arrested with Mr. Naji in Peshawar. He was voluntarily repatriated from Guantanamo to Algeria in July 2008, but then "was subsequently charged with ‘membership in a terrorist organization abroad and using forged travel documents.’" He was only cleared of charges and released last February. Others have faced charges against them over a year after the actual repatriation. Naji may be safe now, but as Worthington warns, "I hope that Abdul Aziz Naji is able to stay in contact with his lawyers, and that he can establish contact with representatives of human rights groups, to ensure that his appearance in the Algerian media is indicative of a new openness on the part of the Algerian government, as is not just a PR stunt, and also, hopefully, to avoid the farcical charges and long-winded trials to which all the other returned Algerians have been subjected."

According to the July 28 interview with Naji, prisoners were tortured to give false confessions. Even more incredibly, they were forced "to take some medicines for three months to drive them crazy, loosing [sic] memory and committing suicide." Charges of drugging prisoners have been widespread, but have been difficult to verify. An Inspector General investigation on such drugging was initiated in 2008, but nothing further has been heard, save for an indication earlier this year that the investigation was still underway.

Naji also charges that "some detainees had been promised to be granted political asylum opportunity in exchange of [sic] a ‘spying role’ within the detention camp." Once released, they maintain their spying role, he charged. It is difficult to imagine that the U.S. has not tried to use some prisoners in this way. In fact, the suicide bombing at the CIA’s Forward Operating Base Chapman, Afghanistan, which killed seven CIA officers and a Jordanian intelligence official last December, was undertaken by a Jordanian doctor who was supposedly "turned" after a short period of imprisonment (and likely torture or blackmail) by the Jordanians. One is reminded, too, of the attempts of Britain’s MI5 to turn British resident and U.S. rendition prisoner Binyam Mohamed into an informer, while he was being tortured in a Moroccan prison in September 2002.

We cannot know for sure, but it may have been Naji’s refusal to so turn informant that led him to be considered for forced repatriation by the Obama administration, as in all other cases since January 2009 the government had followed the Bush administration in not undertaking the forced deportation of any Guantanamo prisoner.

Naji’s forced repatriation, his story of drugging and torture and coerced confessions at Guantanamo, and tales of deals with prisoners, swapping political asylum for spying, are all very disturbing. They reveal a side of the government’s actions in what used to be called the "war on terror" that is rarely even mentioned in the press anymore. When any truth about U.S. military or intelligence activity does leak out, as when Wikileaks released tens of thousands of military reports from Afghanistan a few weeks ago, such attempts to unveil government actions have been met by official condemnation and even calls for extrajudicial action against Wikileaks founder Julian Assange, and China-like censorship of the Wikileaks website.

The United States exists today in a state of moral anarchism. The government gives lip service to the rule of law, but repeatedly and consistently shows its disdain for international protocols. As Shahid Buttar of the Bill of Rights Defense Committee pointed out recently, the FBI has been politically spying on Americans for ten years now, and wants the freedom to do even more. BORDC is one of 50 peace, environmental, civil rights, and civil liberties groups seeking "long overdue legislative limits to constrain the FBI" (PDF). Meanwhile, the ACLU and the Center for Constitutional Rights are seeking "a federal court order restraining the Obama administration from killing [the son of Nasser al-Awlaki] without due process of law." The son, Anwar al-Awlaki, a U.S. citizen, is on a government assassination list.

Cases like that of Abdul Aziz Naji put a human face on the actions of the U.S. government. Organizations as diverse as Wikileaks, BORDC, ACLU, CCR and others are fighting to turn this nation back from its headlong plunge into militarism, torture, and assassination, all the deformations that result from substituting imperialism for democracy. But real democracy will not take place until serious, and far-reaching societal and institutional change takes place. This is the challenge of our generation, a challenge we dare not refuse to answer.

[Author note: Written for a Daily Kos audience, I'm reposting here the better to call attention to the issue, and to update those in the Firedoglake/Seminal community on some of the latest developments in this scandal.]

In an editorial posted by the New York Times on Saturday afternoon, the editorial board condemned the Obama administration’s involuntary deportation of a Guantanamo prisoner to Algeria. The prisoner, 35-year-old Abdul Aziz Naji, was cleared of any charges in a wide-ranging review of Guantanamo prisoner status last year. Naji begged not to be sent back to Algeria, a country he fled after being attacked himself at age 17 or 18 by extremists. Naji feared the Algerian government could not protect him against the Islamic fundamentalist rebels that have been fighting the somewhat more moderate Islamic government for some twenty years now.

The Times editorial continues the story:

Though he offered to remain at the prison, the administration shipped him home last weekend and washed its hands of the man. Almost immediately upon arrival, he disappeared, and his family fears the worst.

It is an act of cruelty that seems to defy explanation.

The response of the Obama administration has been terse and self-serving. They say they have gotten assurances from the Algerian government that Mr. Naji, who was never charged with any crime, would not be mistreated or tortured when sent back. The Times notes that a 2008 Supreme Court decision gives "broad discretion to decide when to accept such promises from a foreign government." But human rights groups have long derided such assurances.

According to a diary at Daily Kos by geomoo, Doris Tennant, one of Mr. Naji’s attorneys, states she and Naji’s other attorney, Ellen Lubell, were informed by the Algerian ambassador "that his government cannot protect him from extremists, who he very much fears will attempt to recruit him because of his association with Guantanamo."

The Times editorial picks up on information about country conditions in Algeria that I had noted in an article at Firedoglake last Tuesday. According to the Times:

The State Department’s human rights report on the country, issued in March, said that reports of torture in Algeria have been reduced but are still prevalent. It quotes human rights lawyers there as saying the practice still takes place to extract confessions in security cases. People disappear in the country, the report said, and armed groups — which obviously made no promises to the administration — continue to act with impunity.

Even more outrageous is the fact that the Obama administration ignored the fact that Mr. Naji had applied for political asylum in Switzerland, denying a request for a stay of deportation from his attorneys. No one knows why the Obama administration has drawn a line in the sand over Naji and another Algerian prisoner, Farhi Saeed Bin Mohammed, who won his "freedom" via habeas appeal last year. Judge Gladys Kessler has been fighting the D.C. Circuit Court to keep the men from being transferred to Algeria, but a 5-3 decision by the Supreme Court late last week paved the way for the administration’s criminal action.

"Criminal" or Stupid, Either Way It’s Outrageous

"Criminal" will no doubt be too strong a word for many of you. But the forcible deportation of a person back to a country where he fears persecution, torture, execution, etc. is known in the law as refoulement, and the international legal principle of not returning such an individual as the principle of non-refoulement. This recognized basic human right was written into international protocols beginning with the 1951 UN Convention Relating to the Status of Refugees, and later into the Convention Against Torture treaty, of which the U.S. is a signatory. Not even the Bush administration, in the hundreds of "detainees" it released from Guantanamo, violated this principle.

In a comprehensive analysis, journalist Andy Worthington has described the unbelievable context of the Obama administration’s cruel behavior:

This was a bleak day for US justice, not only because it involved the Supreme Court blithely disregarding the UN Convention Against Torture’s “non-refoulement” obligation, joining in an unholy trinity with the D.C. Circuit Court and the Obama administration, but also because it brings to an abrupt, cruel, and — I believe — illegal conclusion a struggle to release prisoners without violating the UN Convention Against Torture, which, for the most part, was actually respected by the Bush administration….

With the Uighurs, the Bush administration recognized its “non-refoulement” obligation, refusing to return them to China, and finding new homes for five of the men in Albania in 2006. When the Obama administration inherited the problem of the remaining 17 men, who had, in the meantime, won their habeas corpus petitions, it found new homes for 12 of them in Bermuda, Palau and Switzerland, although five still remain at Guantánamo, and, last spring, the administration turned down a plan by White House Counsel Greg Craig to bring some of the men to live in the US, which would have done more in the long run to defuse scaremongering about Guantánamo than any other gesture.

The Center for Constitutional Rights (CCR) decried the Obama administration’s forcible removal of Mr. Naji. Mr. Bin Mohammed could also be deported at any time.

CCR supports the ongoing efforts of the U.S. State Department to close Guantánamo Bay, particularly in the face of unyielding resistance from Congress and the seemingly detached indifference of the White House to the continuing plight of the men held in our notorious prison. However, the solution to Guantánamo Bay does not rest on forcing detainees to return to countries where they fear torture and persecution. It is not only illegal, but also bad policy…. Forced repatriations make the United States appear complicit with repressive regimes and are certain to outrage Arabs and Muslims around the world at a time when our government needs their support.

Is There Anything to Be Done?

In a letter the other day to supporters, CCR wrote:

The Obama Administration violated both U.S. and international law by forcibly repatriating Mr. Naji, and Center for Constitutional Rights is now deeply concerned as neither his wellbeing nor whereabouts are known….

Please write the Algerian Embassy in Washington, DC (at mail@algeria-us.org) and the Permanent Mission of Algeria to the United Nations at mission@algeria-un.org and demand that the Algerian government immediately account for Mr. Naji’s whereabouts and well-being. They must tell us where he is and provide assurances that he is well. The Algerian government should also comply with international law prohibiting the use of secret detention and torture. Moreover, the Algerian government must protect Mr. Naji from extremist forces in Algeria who may try to recruit him and harm him when he resists joining them. Finally, the Algerian government should in the future not accept forced repatriations of its citizens who fear they will be harmed in the country.

The court’s decision and the actions of the Obama administration are an outrage and another blow against the international position of non-refoulement, or non-return of refugees and the persecuted, as described in the UN Convention Against Torture and other international treaties and protocols. This action marks the U.S. as an uncivilized nation, a nation busily disassembling the rule of law in the name of empire building.

It’s possible that Aziz is a test case, as they will want to release others to countries where they fear persecution. They can let “friendly” governments “dispose” of their prisoners. I also believe it’s possible they intend to seed some small number through as possible double agents among the Islamic “extremist” groups, and this is one way to manufacture bona fides after being held so long. A very dangerous game for everyone involved.

It’s noted above that Switzerland has taken up an application for asylum from Mr. Naji (it is, I believe, on appeal there). The simplest solution would be to offer Mr. Naji, who never harmed any U.S. person, asylum in this country, but as FDL/Seminal diarist powwow notes in a comment at Emptywheel yesterday:

For other Bill-of-Attainder-esque reasons, the following Congressional restrictions also deserve highlighting:

The Homeland Security Appropriations Act includes two additional provisions affecting the treatment of Guantanamo detainees. Section 553, which appears to apply beyond the end of the 2010 fiscal year…. prohibits the use of funds appropriated under that act to “provide any immigration benefit” to any former Guantanamo detainee, including a visa, admission into the United States, parole into the United States, or classification as a refugee or applicant for asylum.51 The prohibition is similar to proposals introduced earlier during the 111th Congress; however, the other proposals would apply permanently, whereas the prohibition in the Homeland Security Appropriations Act appears to apply only to funds appropriated by that act.52

In any case, if they can get away with the criminal return of Aziz Naji without popular furor, then they can proceed with more of the same. This was all prefigured when al-Libi — the man who told the U.S. about Saddam and WMD (under torture — he later recanted the “confession”) — was mysteriously found dead in his Libyan cell and there was no call for investigation.

Don’t Ignore This Issue

Thus far the Daily Kos community has essentially ignored the outrageous Naji deportation (the diary by geomoo was a notable, but mostly ignored exception). I hope this diary begins the rectification of that. The New York Times editorial reminds us there is "no reason to deliver prisoners to governments that the United States considers hostile and that have a record of torture and lawlessness."

Call the White House: 202-456-1111, or write them if you wish. Let them know there is line beyond which support for this administration ends, and the forceable return of an innocent prisoner, tortured and imprisoned for eight years by the United States, to a country he fled over 15 years ago, in fear for his life, is exactly such a line.

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